Detention Of A Person Despite Furnishing Of Personal Bond Violative Of Article 21: Allahabad High Court

The Allahabad High Court has held that keeping a person in custody, despite his furnishing personal bonds as required by the magistrate, is violative of his right to personal liberty guaranteed under Article 21 of the Constitution. A Division Bench comprising of Justices Surya Prakash Kesarwani and Shamim Ahmed recently pulled up an Executive Magistrate for failing to release two persons, arrested on apprehensions of breach of public peace, despite their furnishing personal bond and other papers. It observed that Section 107 CrPC requires a person to provide security/ execute a bond for peace keeping. It thus held that keeping a person in custody, despite fulfilment of conditions contained in the CrPC, is violative of Articles 14 and 21 of the Constitution. "In his counter affidavit, the respondent no.3 (Magistrate) has tried to justify his arbitrary action and clear breach of statutory duty cast upon him as well as the fundamental rights guaranteed under Article 14 and 21 of the Constitution of India," the Court sternly remarked. Background Significantly, Section 107 CrPC requires the Magistrate, receiving the information that any person is likely to commit a breach of the peace and is of opinion that there is sufficient ground for proceeding, he may require such person to show cause why he should not be ordered to execute a bond for keeping the peace a period not exceeding one year. In the instant case, the Petitioners were arrested under Section 151 CrPC on October 8, 2020. A Challani Report was submitted by the Police on the same day to the Sub Divisional Magistrate, Varanasi, under Section 151 (Arrest to prevent commission of cognizable offences), 107 (Security for keeping the peace) and 116 (Inquiry as to truth of information) CrPC. The Petitioners submitted personal bond and other papers on October 12, 2020 but the Magistrate did not release them and instead, under the pretext of verification, directed the file to be placed on October 21, 2020. The Magistrate directed the concerned Tehsildar to verify the revenue records produced by the sureties. Thereafter, the petitioners were released on October 21, following which they approached the High Court against alleged arbitrary and illegal detention between October 12 and October 21. There were two issues that the Court was required to address: 1) Was the detention between aforesaid period after furnishing of Personal Bonds justified? At the outset, the Bench observed that despite submission of personal bond and other papers by the petitioners before the Magistrate, they were not released and that too against the Magistrate's own order that the petitioners shall be detained "till presentation of personal bond". It thus held, "Non release of the petitioners by the respondent no.3 even after submission of personal bond/bond and other papers, is a clear breach of Article 21 of the Constitution of India, by the respondent no.3 which resulted in illegal detention of the petitioners at least since 12.10.2020 to 21.10.2020." The Bench further noted that in his counter affidavit, the Magistrate had tried to justify his arbitrary action and clear breach of statutory duty cast upon him. It observed that in the impugned order, the Magistrate failed to comply with Section 107 inasmuch as he did not record his satisfaction as to existence of sufficient ground to seek bonds for peacekeeping. "The aforesaid order dated 8.10.2020 would further reveal that the respondent no.3 has not required the petitioners to show cause that why they should not be ordered to execute a bond with or without sureties. Thus, the respondent no.3 has committed clear breach of mandate of Section 107 Cr.P.C,," the Bench opined. Furthermore, it noted that the Magistrate had proceeded in breach of Section 111 of CrPC, which requires a Magistrate, acting under section 107, to make an order in writing, setting forth (i) the substance of the information received, (ii) the amount of the bond to be executed, (iii) the term for which it is to be in force, and (iv) the number, character and class of sureties (if any) required. "These necessary ingredients of Section 111 Cr.P.C. are totally absent in the order dated 8.10.2020 passed by the respondent no.3. Thus, it is evident on record that the respondent no.3 has acted arbitrarily and illegally," the Bench said. It added, "The facts, afore-noted, leave no room of doubt that the respondent no.3 has acted arbitrarily and not only failed to discharge his duty cast upon him under Section 107 and 111 Cr.P.C. but also committed breach of Article 14 and 21 of the Constitution of India. Such type of instances need to be stopped by the State Government." 2) Can Challani Report be in a printed form? The Challani Report submitted by the police was on a printed proforma, and merely name of the petitioners and others, name of village and "land ...

Detention Of A Person Despite Furnishing Of Personal Bond Violative Of Article 21: Allahabad High Court

Akshita Saxena

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